Constitutional rights face tough tests in time of war

By Lisa Mascaro (contact)

Sunday, June 22, 2008 | 2 a.m.

Washington — Just a few steps away from the Capitol, among the shops on Pennsylvania Avenue, is a bookstore that sells pocket-size copies of the U.S. Constitution.

Actually, places all around town stock the booklet, often displayed here the way stores in Nevada might offer sparkly Fabulous Las Vegas tchotchkes.

The Constitution has been getting a workout in recent days. First was the Supreme Court’s decision rejecting the Bush administration’s endless prisoner detentions at Guantanamo Bay. Next was the deal reached between Congress and the White House to revamp the domestic spying law.

Taken together, the two reflect the ongoing tension in this country, nearly seven years after Sept. 11, between our commitment to civil liberties and our wartime worry over national security — a strain that is sure to be exploited this election year.

Ever since the attacks of 2001, political campaigns have tapped heavily into Americans’ fears in a post-Sept. 11 world. Republicans have found great success in asking voters which party would best protect them — the answer, as it has been since Vietnam, has been the Republicans.

Two summers ago, before lawmakers could fully imagine the 2006 Democratic takeover of Congress, fear remained a potent force on the Hill.

The Republican-led House and Senate supported the Military Commission Act, which denied Guantanamo detainees full legal redress in civilian court. The bill was supported by Nevada’s three Republican lawmakers at the time: Sen. John Ensign, Rep. Jon Porter and then-Rep. Jim Gibbons. Democratic Sen. Harry Reid and Rep. Shelley Berkley voted no (as did Sen. Barack Obama, the Democrats’ presumed presidential nominee).

As the Supreme Court struck down that concept last week, Michael Ratner of the Center for Constitutional Rights said the courts accomplished what lawmakers had been too nervous to do.

Republicans, meanwhile, called the court decision a looming national security disaster. Sen. John McCain, the party’s presumed presidential nominee, said it was the worst decision the court has ever made.

Instead of delivering the law of the land, the court handed down a decision that has become a political rallying point this election year. Some observers compare it to the Brown v. Board school desegregation ruling of 1954 that ended one battle but opened up a new front in the civil rights debate.

Then came the tangled agreement over domestic spying. House Democrats initially took a hard line against President Bush’s skirting of the Watergate-era law that requires the government to get warrants before it spies on Americans.

But with an election ahead, Democrats fear becoming the party known for having halted the spy community’s ability to track terrorists, said Princeton University Professor Julian E. Zelizer, who writes extensively on Congress.

As part of the deal reached over the Foreign Intelligence Surveillance Act, the estimated 40 lawsuits against the major telecommunication companies for allegedly spying on Americans without proper court approval will likely be dismissed.

Reid, now the majority leader, remains opposed to granting telecoms judicial immunity, just as he did when he allowed an earlier version of the bill to pass through the Senate this year.

Democrats call the bill a compromise, but after House passage on Friday the ACLU said that chamber “should be ashamed of itself.” The bill goes to the Senate this week.

So how is the Constitution holding up? While the Guantanamo prisoners will have their day in court, the Americans who claim they are victims of domestic spying will not.

The Constitution looks so grand sitting under glass at the National Archives. But really, it is so succinct it can fit in a tourist’s back pocket. Perhaps that is where it belongs — just to be sure everyone is in on the joke when someone asks, as a colleague noted comedian Stephen Colbert spoofed last week, “Where does the Constitution get off telling our government what it can and cannot do?”